When an application is filed with a government agency, the applicant has the expectation that it will be adjudicated within a reasonable period of time. That expectation is supported by administrative law that requires the agency to adjudicate the application within a reasonable amount of time. As anyone who has ever filed an application with the United States Citizenship and Immigration Services (USCIS) knows that the delays may be well beyond reasonable and sometimes even extraordinary. When that happens, it may be necessary to file a lawsuit to compel the government to do its job.
The legal term for this lawsuit is called mandamus, but it does not require the agency to approve an application. It is a lawsuit that seeks an order from a federal court judge requiring the USCIS to make a decision. The decision will allow the immigrant to move forward. If the USCIS grants the petition or application, the individual may be able to move up to lawful permanent residence or citizenship (depending on what benefit was sought). Even if the USCIS issues a denial, the applicant may appeal if the decision was not supported by the law or the facts. However, that appeal can only be filed after the USCIS adjudicates the case.
For many applicants the waiting time for decisions on applications for adjustment of status and naturalization are highly unreasonable. This delay is not due solely to the backlog caused by the numerous applications being filed with the USCIS. Many times the USCIS claims the delay is caused by the Federal Bureau of Investigation’s (FBI) failure to complete the background check on the applicant to ensure that they are not granting permanent resident status or citizenship to a terrorist.
In previous years, upon the filing of a mandamus, the USCIS, or its predecessor, the Immigration and Naturalization Service (INS), would pull the file and adjudicate the application within a matter of weeks. They have ceased that practice. More recently USCIS spokesperson stated that their position is that they will fight the case in court because they do not believe that the delays are unreasonable or their fault. They claim that the delays are caused by the FBI’s police and security checks and assert that they are adjudicating the cases within a reasonable time after receiving the results from the FBI.
What the USCIS is attempting to do is scare off the more timid applicants from filing a lawsuit. When Reeves & Associates needs to resolve an unreasonable delay, we include the FBI as a defendant in the lawsuit. The FBI also has a duty to complete its task in a reasonable amount of time. The argument that it takes months or even years because they need to make sure the individual is not a terrorist or that they are inundated with security checks is absurd. If the applicant were really a terrorist or posed a danger to society, it would be utterly unreasonable to wait years to find out. During this time, a terrorist or a criminal would be living in the United States free to inflict great harm. One would expect that a security clearance would be a high priority for both the FBI and the USCIS. If the government truly believes that some immigrants might be terrorists, the security checks should be completed within a few hours. The reality is that the FBI and the USCIS have put these clearances on a low priority simply because they know that the majority of the people applying for immigration benefits are law-abiding people who are absolutely no threat to our society. The attitude is that these people have no choice so they can just wait. USCIS has conducted several hundred thousand security checks on immigrants since 9-11 and they have not found even one terrorist.
Many district court judges have taken the position that the security checks should be done in an expeditious manner for both the applicant’s sake and the safety of society. Individuals who have been waiting for an unreasonable period of time for a decision on their application should consult with an experienced immigration firm to see if a lawsuit should be filed on their behalf.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
Atty. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding INS action and immigrants' rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in text books as a guide to other immigration practitioners.
His offices are located in Pasadena, San Francisco, Las Vegas and Makati City. Telephone: 759-6777